AEGIS SHIPPING CO., LTD. vs. VOLTA LINES LTD. [1973] 1 GLR 438

CASES REFERRED TO

(1) Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R. 89, C.A.

(2) Amon v. Raphael Tuck & Sons Ltd. [1956] 1 Q.B. 357; [1956] 2 W.L.R. 372; [1956] 1 All E.R.

273.

(3) Gurtner v. Circuit [1968] 2 Q.B. 587; [1968] 2 W.L.R. 668; [1968] 1 All E.R. 328; [1968] 2 Lloyd’s Rep. 177; 112 S.J. 73, C.A.

(4) Vandervell Trustees Ltd. v. White [1971] A.C. 912; [1970] 3 W.L.R. 452; 114 S.J. 652; [1970] 3 All E.R. 16, H.L.

(5) White v. London Transport Executive [1971] 2 Q.B. 721; [1971] 3 W.L.R. 169; [1971] 3 All E.R.

1; 115 S.J. 368, C.A.

(6) Bonsu v. Bonsu [1971] 2 G.L.R. 242.

NATURE OF PROCEEDINGS

APPLICATION for a review of the dismissal of the applicant’s earlier application to be joined as a party to a suit. The facts are set out in the ruling.

COUNSEL

Dr. E. V. C. de Graft-Johnson for the applicant.

Joe Reindorf (Miss Elizabeth Solomon with him) for the respondents.

JUDGMENT OF ABBAN J.

In an earlier application, the applicant applied to be joined as a defendant in the suit herein. The said application was heard and, in a considered ruling, the court on 6 November 1972, refused the application. In the present application the applicant is asking for a review of that ruling under Order 39, r. 1 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

It is well known that before the court can exercise its discretion to review any order or judgment under Order 39, r. 1 (1), the person asking for the review must satisfy the conditions spelt out in the said rule. That is, he must show that new and important matter or evidence has been discovered since the judgment was given or the order was made, and that that new matter or evidence after the exercise of due diligence, was [p.440] of [1973] 1 GLR 43 not within his knowledge or could not have been produced. Or he must satisfy the court that there is some mistake or error apparent on the face of the record or there is sufficient reason which calls for a review. It must therefore be considered whether the applicant has been able to establish the existence of any of the above conditions. The facts in this case were fully stated in the ruling which has been called in question, and I will not therefore go over them in the present application. But I will refer in extenso to the original affidavit of the applicant, filed on 20 November 1972, in support of the present application. The affidavit reads as follows:

“(1) That I am the solicitor for the applicant herein and have the authority of the said applicant to swear to this affidavit in their [sic.] behalf.

(2) That I am personally seised of all the facts to which I depose.

(3) That on the 6th October 1972, the applicant Aegis Shipping Co., Ltd., Piraeus, Greece, applied to be

joined as defendant in the suit herein on grounds stated in the supporting affidavit.

(4) That on the 23rd October 1972, upon a preliminary hearing the learned trial judge ordered a security of ¢1,000.00 be paid before the main motion was argued.

(5) That on the 30th October 1972, the motion was argued after the due payment of the said security for costs and the ruling was adjourned to the 6th November 1972.

(6) That on the 6th November 1972, the learned trial judge appears to have given his ruling dismissing the application for joinder.

(7) That unfortunately, as solicitor for the applicant, I was not present when the ruling was given as I was in another High Court in a part-heard case.

(8) That I am dissatisfied with the ruling herein and I have advised my clients their better cause is to ask for a review of the said ruling among other grounds on the peculiar position in this case that the applicant should have been made the principal defendant whereas the other defendants cannot alone defend the suit whereas the applicant could alone do so.

(9) That I have applied for a certified copy of the ruling and will attach a copy of the same when it is available and swear to a supplemental affidavit in further support of the application for review.

(10) I therefore swear to this affidavit in support of my application for review.”

This affidavit does not allege that new and important matter or evidence has been discovered since the ruling was given, and it does not also allege any mistake or error on the face of the record.

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However, on 20 December 1972, the applicant filed its supplemental affidavit, consisting of about 24 paragraphs. In that supplemental affidavit, references were made to the pleadings and the case for the applicant was set out in greater detail. Attached to the affidavit are copies of certain documents which the plaintiff and the defendants exhibited in an earlier application for an interim injunction. That application for an interim injunction was dealt with long before even the motion for joinder was filed. So that at the time the court was hearing the applicant’s motion for joinder, the court was aware of the existence of the said documents and also of the contents.

Thus, there is nothing new about these documents. In fact, learned counsel for the applicant did not claim these documents to be new matters which have now been discovered. In brief, the supplemental affidavit, as in the case of the original affidavit, does not disclose any of the circumstances which must prevail before the application for the review can be considered. Nevertheless, thinking that learned counsel for the applicant might be able, in the course of his submissions, to convince the court that the grounds for a review existed, I allowed him to argue the merits of the application despite the objection raised by learned counsel for the plaintiff.

During his lengthy, but interesting argument, it became clear to the court that learned counsel for the applicant was looking upon the occasion as a fine opportunity to examine the cases which he never referred to when he argued his application for joinder. He referred to a lot of authorities some of which were, of course, considered in the said ruling of 6 November 1972. I must say that learned counsel for the applicant gave a very good analysis of those authorities, and I think that was very instructive indeed.

He finally submitted that the court in the said ruling of 6 November 1972, put a wrong interpretation on the principles enunciated in the cases which were cited in the ruling, and thereby misapplied those principles to the facts of the present case. Counsel therefore contended that if the principles had been correctly applied, the court would have found that the applicant is a necessary party to be joined in the suit, and in the circumstances the application for the review ought to be granted.

This argument of learned counsel, if it is right, will mean that the court misdirected itself on the law. In other words, there has been a mistake or an error of law, and this can be a very good ground for appeal. But in my view, it cannot be sufficient reason for granting a review under Order 39, r. 1 (1). I think learned counsel is only trying to ask the court, in the present application to reconsider these authorities and then apply them, this time, in favour of the applicant. But this cannot be done. In my opinion, a judge should not grant an application for a review of his judgment or of an order made by him, where the only basis for the said application is that a point of law, which was in

[p.442] of [1973] 1 GLR 43

fact brought to his attention or notice during the hearing and before judgment was delivered or the order was made, needs re-consideration: see Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R. 89, C.A. in that case the Court of Appeal (Korsah C.J., van Lare and Granville Sharp JJ.A.) held that reconsideration by a trial judge of a point of law brought to his notice during the trial and before judgment is not a sufficient reason for a review.

When delivering the judgment of the court van Lare J.A. said at pp, 90-91 that:

“In the instant case we are unable to say that there was a discovery of any new and important matter. The learned judge must be taken to have considered that a reconsideration by him of a point of law, brought to his notice during the trial and before judgment (viz., the effect of sections 2, 7, 8 and 10 of the Concessions Ordinance in connection with Concession Enquiry No. 2243 (Sekondi)), was a sufficient reason for his purported review . . . We are unable to agree that this could be a sufficient reason, within the meaning of Order 39, r. 1 (1), to enable the judge to review his previous judgment.”

In any event, I do not think that the court mis-read any of the authorities cited by learned counsel for the applicant and which authorities were referred to in the said ruling. I have not spared myself the expense of a second thought, so far as the said authorities are concerned, and the more I read them, the more I become convinced that the ruling of 6 November 1972 was the right one in the circumstances of this particular case.

Learned counsel for the applicant also criticised the said ruling, especially as to the court’s apparent inclination towards the narrower construction of Order 16, r. 11, as advocated by Devlin J. (as he then was) in the case of Amon v. Raphael Tuck & Sons Ltd. [1956] 2 W.L.R. 372. It will be remembered that in that case the English High Court dealt with an application for joinder under Order 16, r. 11, of the English Rules of the Supreme Court, which rule at that time was equivalent to our present Order 16, r. 11. Devlin J. in his judgment held the view that the rule does not give wide powers to the court to join any party, simply because it is convenient and just to do so. In his opinion there is a limitation on the court’s jurisdiction to join an intervener, and he thinks a narrower construction of the rule should be preferred. At p. 376 of the report he said:

“I derived a great deal of assistance from the observations of counsel on the further authorities to which I drew their attention and was, I think, enabled to understand them better than I had previously done.

Nevertheless, I remained of the opinion that the narrower construction was the right one; and if that had remained the only point taken by Mr. Aldous the appeal would have failed.”

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This narrower construction of Devlin J. was disapproved by Lord Denning M.R. in Gurtner v. Circuit [1968] 2 Q.B. 587, C.A., who thought that the rule must be given a wider construction. At p. 595, the learned Master of the Rolls said:

“That rule is in substantially the same terms as the old R.S.C., Ord. 16, r. 11, and nothing turns on the difference in wording. There were many cases decided on it. But I need not analyse them today. That was done by Devlin J. in Amon v. Raphael Tuck & Sons Ltd. ([1956] 2 W.L.R. 372). He thought that the rule should be given a narrower construction, and his views were followed by John Stephenson J. in Fire Auto and Marine Insurance Ltd. v. Greene [1964] 2 Q.B. 687). I am afraid that I do not agree with them. I prefer to give a wide interpretation to the rule, as Lord Esher M.R. did in Byrne v. Brown ((1889) 22 Q.B.D. 657).”

Learned counsel for the plaintiff in his submission drew the court’s attention to the case of Vandervell Trustees Ltd. v. White [1971] A.C. 912, H.L. where Viscount Dilhorne in delivering his judgment in the House of Lords, referred to Amon’s case and criticised the view of Lord Denning M.R. as regards the wider construction. He said at p. 935 that:

“Whether this interpretation is wider than that stated by Devlin J. in the passage cited above, it is not necessary to consider. My difficulty about accepting Lord Denning’s wide interpretation is that it appears to me wholly unrelated to the wording of the rule. I cannot construe the language of the rule as meaning that a party can be added whenever it is just or convenient to do so. That could have been simply stated if the rule was intended to mean that . . .

The rule does not provide that a party may be added on account of matters in dispute in another cause or matter. And even if it did, for the reasons I have given, it could not be said that the determination of the matters in dispute in this action would effectually and completely determine the liability to surtax.”

It can therefore be seen that the scope of Order 16, r. 11 is not free from doubt. However, it seems to me that there is a lot to be said for the narrower construction. After all, a careful study of the cases dealing with joinder under this rule, will show that in some of those cases where the wider construction of the rule is advocated for, that wider construction is significantly narrowed down when it comes to its application to the facts involved in those cases. This is why I am of the view that all these authorities do no more than lay down guide lines to assist the court in the exercise of the kind of discretion envisaged by the said rule.

I therefore hold that no matter the kind of construction which is put on the said rule, whether wider or narrower, it is abundantly clear that the court has absolute discretion in any given case to determine

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whether having regard to the state of the pleadings and the issues raised, the intervener is a person who ought to have been joined, or he is a person whose presence would enable the court, effectually and completely, to decide the issues raised between the parties in the cause or matter; and that all these authorities merely set out principles on which that discretion can be exercised: see White v. London Transport Executive [1971] 3 All E.R. 1 at pp. 4-5, C.A., where Lord Denning M.R. and Stamp L.J. appeared to have held the view that joinder is, after all a matter of discretion for the court and that even if it had been shown that the intervener was a necessary party within the rule, they would still have refused to join the said intervener, since the action as it was then constituted could be well and properly contested by the parties. On this exercise of discretion under rule 11, I will refer with approval, to the judgment of my learned brother Taylor J. in the case of Bonsu v. Bonsu [1971] 2 G.LR. 242.

In the present case, I am satisfied that the court did not in its said ruling of 6 November 1972, misinterpret the principles enunciated in the authorities referred to in the said ruling. They were correctly applied to the facts of the present case. The court therefore properly exercised its discretion in dismissing the said application for joinder. What is more, no new and important matter has been put forward in this application. Neither has the applicant been able to point out any mistake or error of fact apparent on the face of the record. In short, the applicant has failed to show any reason which calls for a review of the ruling of 6 November 1972. In the circumstances, the application will be and is hereby dismissed. The plaintiff will be entitled to costs which I fix at ¢110.00, inclusive. The costs should be paid out of the money paid into court by the applicant.

DECISION Application dismissed with costs.

S. E. K.